Kathleen Hazlett v. Ernest C. Trefz et al. (2010)

MEMORANDUM OF DECISION

Before the court is the plaintiff, Kathleen Hazlett's petition for a new trial.   This case stems from a personal injury action initiated by the plaintiff against the defendants, Ernest Trefz, Christian Trefz, and Trefz Corporation, for damages arising out of the alleged negligence of the defendants at their place of business on December 5, 2002.   The plaintiff's original action, Hazlett v. Trefz, Docket No. CV 05 5000265, was dismissed on June 28, 2006 by Judge Lager, the administrative judge, for failure to file a “status conference agreement form.” ¹  A status conference agreement form was prepared by Gallagher, attorney for the plaintiffs and forwarded to the attorney for the defendant but the attorney for the defendant failed to file it with the court.   Upon learning of the dismissal, Gallagher wrote to the New Haven caseflow coordinator.   It was Gallagher's experience that cases that had been dismissed because a status conference agreement form was not timely filed were routinely reinstated.   In fact, Gallagher was advised by the caseflow coordinator in the clerks' office that the case would be reinstated and he did not have to file a motion to set aside the dismissal.   In March 2008, Gallagher learned that the case had not been reinstated.   He immediately filed a motion to open the judgment, requesting that the court set aside the dismissal.   The parties were not afforded the opportunity for oral arguments and the motion was denied by Judge Lager on the papers because it was filed more than four months after the dismissal.

“A petition for a new trial is a statutory remedy that is essentially equitable in nature.  General Statutes 52-270 sets forth the limited circumstances in which a new trial will be granted.”  (Citation omitted.)   Bleidner v. Searles, 19 Conn.App. 76, 78 (1989).  Section 52-270(a) provides in relevant part:  “The Superior Court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a nonsuit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases.”  (Emphasis added.)

The applicable limitations period for the plaintiff's petition for new trial is found in General Statutes § 52-582, which provides in relevant part that “[N]o petition of a new trial ․ shall be brought but within three years next after the rendition of the judgment or decree complained of ․”

The facts relevant to the limitations period in this case are not in dispute.   Judgment of dismissal in the original action was entered on June 28, 2006.   The present petition for new trial was initiated on June 9, 2009 and filed with the court on June 10, 2009.   Service was made upon the defendants on June 25, 2009.   Accordingly, the plaintiff's petition is not barred by § 52-582 because the defendants were served with the petition for new trial within three years of the date of dismissal.

“Although General Statutes § 52-270 permits the court to grant a new trial upon proof of reasonable cause, the circumstances in which reasonable cause may be found are limited ․ The basic test of reasonable cause is whether a litigant, despite the exercise of due diligence, has been deprived of a fair opportunity to have a case heard ․ A new trial may be granted to prevent injustice in cases where the usual remedy by appeal does not lie or where, if there is an adequate remedy by appeal, the party has been prevented from pursuing it by fraud, mistake or accident ․ Absent such special circumstances, [a] petition for a new trial does not furnish a substitute for, or an alternative to, an ordinary appeal ․ Under § 52-270 the exercise of due diligence is a condition precedent to a finding of reasonable cause.”   (Internal quotation marks omitted.)  Murphy v. Zoning Bd. of Appeals, 86 Conn.App. 147, 152-53 (2004), cert. denied, 273 Conn. 910, (2005);  Davis v. Fracasso, 59 Conn.App. 291, 298 (2000) (“Other reasonable cause includes every cause for which a court of equity could grant a new trial, such as, for example, fraud, accident and mistake” (internal quotation marks omitted).

In the present matter, this court holds that reasonable cause for a new trial exists because it is clear that plaintiff was not provided with an opportunity to have her case heard on the merits.   The accidental failure on the part of the clerk's office to reinstate the case resulted in the late filing of the motion to open judgment.   In her April 7, 2008 decision denying the plaintiff's motion to open,

For the foregoing reasons, the plaintiff's petition for a new trial is granted.

Robert I. Berdon

Judge Trial Referee

FOOTNOTES

FN1. There is no provision in the Connecticut Practice Book for a “status conference agreement form.”   It is a local form to allow the presiding judge to know the availability of counsel for a trial date..  FN1. There is no provision in the Connecticut Practice Book for a “status conference agreement form.”   It is a local form to allow the presiding judge to know the availability of counsel for a trial date.

Berdon, Robert I., J.T.R.